Yesterday, Steve Berman presented a case for why Republicans should not filibuster S.1, the “For the People Act,” but instead should allow debate and a vote on the bill and then kill it outright. Later in the day, however, Senate Republicans refused to allow debate on the bill in a party-line vote. The bill will now die a slow death as it languishes in the Senate rather than a quick coup de grace from an up-or-down vote. The question is why Mitch McConnell would choose the filibuster route if he had the votes to kill the bill, which he apparently did.
An up-or-down vote would seem to be a good idea. Sure, Republicans would be castigated whether the bill dies from a filibuster or vote, but there would be some strategic advantages to allowing a vote. One is avoiding rubbing the filibuster in the face of progressives. Right now, the filibuster is hanging by a thread and the more the tactic is used (or abused) the more pressure there will be on Democratic holdouts Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.V.). The pair might never break, but then again, if McConnell continues to push their backs against the wall, they just might.
Looking at the long game, the Senate map for 2022 looks favorable for Democrats to pick up additional seats. If Republican use of the filibuster angers voters in purple states (North Carolina and Pennsylvania, I’m looking in your direction) then McConnell may find himself head of a smaller minority. In that case, Manchin and Sinema may not be able to save the filibuster.
In filibustering S.1, McConnell also missed a chance to put Joe Manchin in a difficult spot. Citing a compromise with fellow Democrats, Manchin voted to open debate yesterday. But voting to open debate is different than voting for the bill’s passage.
As a Democrat in a very red state, Joe Manchin would have been on the hot seat as the deciding vote for the bill in a damned-if-you-and-damned-if-you-don’t scenario. If Manchin opposed the bill in its final form, he would have become even more of a pariah among Democrats and possibly sparked a progressive primary challenge. If he voted “yea” to a bill that is very unpopular among his home-state Republican majority, Manchin would have made himself vulnerable to a general election challenger.
Even if McConnell feared that Manchin would eventually be completely won over to support the bill, there would have been another opportunity to stop S.1. The Senate also requires 60 votes to close debate and move to a vote.
I can see several reasons why McConnell elected to kill S.1 immediately rather than allowing the bill to go to a vote. The first is that he was concerned that Joe Manchin would flip and become the deciding vote to pass the bill. Second, McConnell likely wanted to avoid a floor debate that could have made Republicans look bad. A third possibility is that McConnell simply didn’t want to take any chances that a federal takeover of election law would pass. There is always the chance that Susan Collins (R-Maine) or Lisa Murkowski (R-Alaska) would cross the aisle as well.
The big problem for Republicans is that filibustering this bill – and just about every other Democratic priority – pushes Manchin and Sinema to relax their defense of the filibuster. The filibuster as we know it is a lot easier to maintain and ripe for abuse than the original filibuster, which required the minority to hold the floor of the Senate for long periods and stop other Senate business. Today’s “filibuster-lite” allows a minority to hold up a vote without tying up the entire Senate docket.
I am pro-filibuster, but I would also like to see the filibuster used less. The Constitution pointedly does not require a supermajority to pass legislation, but that is effectively what we have now. In my view, the filibuster should be an emergency brake to stop particularly bad legislation rather than an anchor that keeps anything and everything from moving forward. Under the current system, the Senate has gone from being the world’s greatest deliberative body to a place where ideas go to die. Elections matter and most bills should be given an up-or-down vote.
The filibuster has been modified at several points in its history and that is probably where we are headed now. The tactic is simply used too often by both parties and has too many enemies on both sides (although positions reverse when control of the Senate changes). The filibuster could be changed again without eliminating it entirely.
In a leaked Zoom call with donors reported in The Intercept last week, Manchin said that he might support such reforms as lowering the requirement for cloture to 55 votes from the current 60 or a return to the “talking” filibuster that would force the minority to be present on the Senate floor.
Mitch McConnell won the day, but his victory may also contain the seeds of his undoing. Pyrrhus famously said, after a victorious battle with heavy losses, “Another such victory, and I am undone.” Mitch McConnell may be in a similar position whether he realizes it or not.
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